GOP-Led FCC KO's Title II

As expected, or feared, depending on your vantage point, a bitterly divided FCC voted Thursday (Dec. 14) to eliminate most network neutrality rules, reclassify ISPs, wired and wireless, as non-common carriers (no longer subject to Title II-based regs), and deed most of the internet policing functions to the Federal Trade Commission or Justice Department.

The meeting began with warnings about interrupting the meeting or trying to submit new documents, which would not be made part of the official record. Despite the warnings, the meeting was delayed during the chairman's remarks due to security concerns.

Gone are rules against blocking, throttling and paid prioritization, and the internet conduct standard by which the FCC could review conduct not prohibited by those rules--like zero rating plans--but that might adversely affect internet openness and access to content.

The item restores the FTC's authority over broadband regulation, and adopts a transparency rule that requires ISPs to let the government and Web users how they are managing their networks and what business practices they are using, which the FTC can enforce if those are unfair or deceptive or anticompetitive, and the Justice Department can enforce if they violate antitrust laws.

The FCC also asserts the ability to preempt state or local attempts to create their own net neutrality laws or regulations It was a sweeping victory for ISPs, who argue that the Democratic-led FCC's 2015 reclassification of internet access as a Title II common carrier service subject to those bright line rules was regulatory overreach that depressed investment and innovation to no pro-consumer purchase. “History will remember the day that the FCC acted to adopt a rational and balanced regulatory framework of internet governance,” said AT&T EVP Joan Marsh.

But those ISPs also say they are ready to get together with legislators and net neutrality activists to hammer out a legislative fix that would restore some of the bright-line rules, conceding that Congress is the best place to finally resolve how best to ensure an open internet while allowing ISPs to monetize their investments in deploying the necessary networks.

Among net neutrality activists, who had pulled out all the stops in the last days to try to head off the vote, it was billed as a death blow to the open Internet by a former Verizon lawyer (FCC chairman Ajit Pai) in service of the Trump Administration and communications monopolies looking for even more power.

"[T]he FCC has given a handful of companies the power to decide what lives and dies online," said Tim Berners-Lee, generally agreed-uopn to be the inventor of the Web and generally summing up the tenor of a flood of such comments before and after the vote.

As with many things in Washington these days, there did not seem to be any middle ground.

Pai's team at the Wireline Competition Bureau, which presented the item at the public meeting, said it would eliminate burdensome regulations and "restore internet freedom."

“We are restoring the light-touch framework that has governed the Internet for most of its existence,” said the Chairman “We’re moving from Title II to Title I. Wonkier it cannot be.

“It’s difficult to match that mundane reality to the apocalyptic rhetoric that we’ve heard from Title II supporters,” he added. “And as the debate has gone on, their claims have gotten more and more outlandish. So let’s be clear. Returning to the legal framework that governed the Internet from President Clinton’s pronouncement in 1996 until 2015 is not going to destroy the Internet. It is not going to end the Internet as we know it. It is not going to kill democracy. It is not going to stifle free expression online. If stating these propositions alone doesn’t demonstrate their absurdity, our Internet experience before 2015, and our experience tomorrow, once this order passes, will prove them so.

Commissioner Michael O'Rielly said the order was the culmination of a careful agency staff to carefully consider whether the rules were warranted. He called it well reasoned and soundly justified. He said he had read the substantive comments and was not persuaded that heavy handed rules were needed to protect against presumed harms. He decried the fear-mongering from the other side. He said the 'net has functioned far longer without such rules than with them. He also said an ISP breaking the net was a bedtime story for tech geeks, but was not reality.

O'Rielly said the 2015 Open Internet Order was flawed and the rollback was the better course. He said reclassifying broadband restores a sensible, bipartisan, approach to broadband services.

O'Rielly did say Congress should probably step in to clarify and establish new rules, but leave the general conduct standard in the ash heap of history. He also said he hoped Congress would preserve paid prioritization, which has pro-consumer applications.

He also said he remained skeptical of the legal basis for the transparency requirement under the new rule rollback regime.

Commissioner Brendan Carr, who joined with O'Rielly and chairman Ajit Pai to approve the item, called it a great day for consumers, innovation and freedom. He said he was proud to end a two-year experiment in massive regulatory overreach.

Carr said market forces, not Title II rules, are already regulating conduct, but the FCC is not simply leaving it to the marketplace. He pointed to returning consumer protection, including privacy authority, over ISPs to the FTC. He also said antitrust law would be a "formidable hammer" against unfair business practices. "The FCC is not killing the Internet.

The Democrats on the panel saw it decidedly differently.

“Net neutrality is internet freedom. I support that freedom," said Commissioner Jessica Rosenworcel, who left no arrows in the quiver as she took aim at the handiwork of her Republican colleagues. "I dissent from this rash decision to roll back net neutrality rules. I dissent from the corrupt process that has brought us to this point. And I dissent from the contempt this agency has shown our citizens in pursuing this path today. This decision puts the Federal Communications Commission on the wrong side of history, the wrong side of the law, and the wrong side of the American public.”

"I dissent, because I am among the millions who is outraged," said Commissioner Mignon Clyburn, calling her dissent a eulogy for net neutrality protections. "Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers. Why are we witnessing such an unprecedented groundswell of public support, for keeping the 2015 net neutrality protections in place? Because the public can plainly see, that a soon-to-be-toothless FCC, is handing the keys to the Internet – the Internet, one of the most remarkable, empowering, enabling inventions of our lifetime – over to a handful of multi-billion dollar corporations."

But Clyburn suggested her unhappiness might be relatively short-lived. "I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered."

The new FCC rule rollback will definitely be challenged in court--the Writers Guild of America West and National Hispanic Media Coalition have already signaled they will do so, and there will likely be many more. Previous FCC attempts to find a regulatory sweet spot for the 'net met the same fate.

The rules will not take effect until the Office of Management and Budget approves the new information collection requirements in the transparency portion of the item, which almost certainly means early 2018 at the earliest.